AS TO THE ADMISSIBILITY OF
Application No. 16304/90
by K., S. and H.
against the Netherlands
The European Commission of Human Rights sitting in private on 7
December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 March 1990 by
K., S. and H. against the Netherlands and registered on 16 March 1990
under file No. 16304/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are two brothers and their sister. They are
Jordanian nationals of Palestinian origin, born in 1963, 1960 and 1965
respectively. The first and third applicants presently reside at
IJsselstein, the Netherlands. At the time of the introduction of the
application, the second applicant was staying in Koudekerke. Before
the Commission they are represented by Mr. W.A.Venema, a lawyer
practising in Rotterdam.
The facts of the case as submitted by the applicants may be
summarised as follows.
In 1987, while in Jordan, the first applicant, Khader, joined the
Popular Front for the Liberation of Palestine (PFLP), an illegal
political organisation. As part of a cell of three persons, his
activities mainly consisted of distributing pamphlets and transporting
arms. He has been arrested several times and was allegedly ill-treated
by the Jordanian intelligence services on those occasions.
On 27 December 1988 he fled Jordan with the help of a high
ranking official of the Jordanian General Intelligence Department
(GID). On 11 January 1989, after his arrival in the Netherlands, he
filed a request for asylum (toelating als vluchteling) and for a
residence permit (verblijfsvergunning). By decision of 18 April 1989,
the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected
both requests holding, inter alia, that the applicant's membership of
the PFLP was open to doubt, that the applicant had made contradictory
statements as to his asylum motives and that his problems in Jordan
were not such as to entitle him to being granted the status of refugee.
On 18 May 1989 the applicant requested a review (herziening) of this
decision. The Deputy Minister of Justice denied suspensive effect to
his request.
On 3 November 1989 the first applicant instituted summary
proceedings (kort geding) with the President of the Regional Court
(Arrondissementsrechtbank) of The Hague, who rejected his request on
12 March 1990 finding the applicant's statements inconsistent. The
President also noted that the applicant left Jordan through the Amman
airport with a valid passport bearing his own name.
On 21 March 1990 the first applicant appealed against this
decision to the Court of Appeal (Gerechtshof) of The Hague which
confirmed the President's decision on 23 January 1992, stating, inter
alia, that it is not plausible that the contradictions in the
applicant's statements were due to the alleged problems in
communicating with the interpreter. It also noted that the general
human rights situation in Jordan had improved and that the PFLP was
represented in the Jordanian Parliament. On 5 March 1992 the applicant
filed a plea of nullity with the Supreme Court (Hoge Raad) which has
not taken a decision yet.
Throughout the proceedings, the first applicant submitted that
the GID was also active in the Netherlands and that he had indirectly
been threatened with death by them through his brother-in-law, the
third applicant's husband (see below). However, the different
instances dismissed the argument as being unfounded.
On 9 March 1989 he fled with his sister, the third applicant, and
her children to IJsselstein, where they have been living since, as they
were allegedly threatened by her husband and by the GID.
The second applicant, Suleiman, entered the Netherlands on 14
April 1988. After protracted proceedings to obtain a residence permit,
he was eventually granted one on 20 December 1990 in order to live with
his Dutch partner.
The third applicant, Subhieh, entered the Netherlands with her
husband and their son on 30 July 1988. Her husband works for the GID
and the three applicants suspect him of checking them and allege that
he has threatened them with death. She unsuccessfully instituted
proceedings to obtain a residence permit. On 19 March 1990 her
marriage was dissolved. On 17 December 1990 she was granted a
residence permit on humanitarian grounds.
On 25 January 1991 the applicants' representative informed the
Commission that the second and third applicants wish to withdraw their
application as both had obtained a residence permit.
COMPLAINTS
1. The applicants originally complained that their impending
expulsion to Jordan would be contrary to Article 3 of the Convention
since they would be exposed to ill-treatment. The first applicant
complains in particular about the risk of ill-treatment in view of his
involvement with the PFLP.
2. He also complains that his expulsion would constitute an
unjustified interference with the family life he has been leading since
March 1989 with his sister, the third applicant, and her children who
consider him as their father.
THE LAW
1. The applicants originally complained that their impending
expulsion to Jordan would expose them to ill-treatment contrary to
Article 3 (Art. 3) of the Convention.
The Commission notes that the second and third applicants have
been granted a residence permit on 20 and 17 December 1990. As the
threat of expulsion has ceased to exist, the Commission considers that
they are no longer victims within the meaning of Article 25 (Art. 25)
of the Convention of the alleged violation of Article 3 (Art. 3).
As far as the first applicant is concerned, the Commission
recalls at the outset that Contracting States have the right, as a
matter of well-established international law and subject to their
treaty obligations including Article 3 (Art. 3), to control the entry,
residence and expulsion of aliens and that the right to political
asylum is not protected by either the Convention or its Protocols (Eur.
Court H.R., Vilvarajah and others judgment of 30 October 1991, Series
A no. 215, p. 34, para. 102).
However, the decision by a Contracting State to expel an
individual can, in certain circumstances, prove to be in breach of the
Convention and particularly of Article 3 (Art. 3), when there are
serious reasons to believe that he could be subjected to treatment
prohibited by the said Article 3 (Art. 3) in the State to which he
would be sent (see e.g. No. 6315/73, Dec. 30.9.74, D.R. 1 p. 73; No.
7011/75, Dec. 3.10.75, D.R. 4 p. 215; No. 12122/86, Dec. 16.10.86, D.R.
50 p. 268; Eur. Court H.R. Cruz Varas and others judgment of 20 March
1991, Series A no. 201, paras. 69-70).
The Commission observes in the first place that, thoughout the
domestic proceedings, the Dutch authorities have dismissed the
applicant's allegations of possible ill-treatment on the ground that
his declarations lacked credibility, in particular concerning his
involvement with the PFLP which in the meantime has been represented
in the Jordanian Parliament.
After examination of the facts and the documents as submitted by
the applicant, the Commission finds that he has failed to show that he
faces a real risk of ill-treatment if expelled to Jordan. No
substantial grounds warranting the fear of ill-treatment having been
established, the Commission concludes that the applicant's complaint
under Article 3 (Art. 3) is unsubstantiated.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The first applicant further complains that his impending
expulsion to Jordan will unjustly interfere with the family life he has
been leading since March 1989 with his sister, the third applicant, and
her children who consider him as their father. He invokes Article 8
(Art. 8) of the Convention which guarantees to "everyone ... the right
to respect for his ... family life".
The Commission considers that the right to respect for family
life is not confined to "legitimate" families. It refers in this
connection to its own case-law and to the judgment given by the
European Court of Human Rights in the Marckx case (Eur. Court H.R.,
Marckx judgment of 13 June 1979, Series A no. 31).
It also recalls that, in order to ascertain whether in a given
case it is appropriate to speak of "family life" within the meaning of
Article 8 (Art. 8), it has considered not only whether the persons
concerned were related but also whether it was in fact possible to
point to such a link as can "be considered to establish family life
within the meaning of Article 8 (Art. 8)" (No. 11418/85, Dec. 14.5.86,
D.R. 47 pp. 243, 256).
In the present case, the Commission finds that, although there
is a family link between the first and the third applicant in the
biological sense of the term, their relationship is not such as to fall
within the ambit of Article 8 (Art. 8) of the Convention. It is
sufficient to note in this respect that there is no indication of any
dependency between the first and the third applicant other than the
normal emotional ties between a brother and a sister.
As to the allegation that the third applicant's children consider
the first applicant as their father since the divorce of their parents,
the first applicant has failed to substantiate this claim.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy